... Judge Shelby’s decision will certainly get the justices’ attention. He acknowledged, for starters, that the Supreme Court’s 5-to-4 decision striking down part of the Defense of Marriage Act, United States v. Windsor, could be read to support either side in his case....Is that "giv[ing] Justice Scalia the finger"? Scalia did what many dissenting opinions do: call attention to the implications of the principle established by the majority, which the majority — posing as modest and incremental — coyly pretends are not there. If Professor Mazzone is right, and Judge Shelby meant to say "fuck you" to Justice Scalia, then it must be acknowledged that Justice Scalia was asking for it.
To resolve the tension, Judge Shelby looked to Justice Antonin Scalia’s dissenting opinion in Windsor.
“The view that this court will take of state prohibition of same-sex marriage is indicated beyond mistaking by today’s opinion,” Justice Scalia wrote.
Judge Shelby wrote, referring to himself, that “the court agrees with Justice Scalia’s interpretation of Windsor.”
December 27, 2013
So said lawprof Jason Mazzone, blogging at Balkinization, quoted today in the NYT in a piece titled "Utah Ruling Means No Respite for the Supreme Court on Same-Sex Marriage," by Adam Liptak. Liptak writes that the U.S. Supreme Court might have hoped, after this year's 2 somewhat modest same-sex marriage cases, to put off the big same-sex marriage question — whether there is a right to same-sex marriage — for a few more years. But the Utah case, it seems, is crushing that hope: